KRISHAN AND ANOTHER Vs. CHAND RAM AND OTHERS

JUDGEMENT

(1.) The defendant-appellants are in second appeal before this Court.

(2.) Briefly stated, the plaintiff-respondent filed a suit for declaration to the effect that he is the owner in possession of 5/12 th share in the land measuring 4 Bighas 16 Biswas comprised in Khasra No.1268, Khewat No.279, Khatouni No.623 situated in village Chhapar as per jamabandi for the year 1988-89. The plaintiff contended that defendant No.2 also had 5/12 th share and the proforma defendants collectively had 2/12 th share in the suit land. Such a declaration was sought as a consequence of his prayer to hold the judgment and decree dated 27.5.1995 passed in civil suit No.314 of 6.5.1995 to be null and void and not binding upon the rights of the plaintiff as the same was towards transfer of ancestral property. The case set up by the plaintiff was that the suit land was the coparcenary property of plaintiff and defendant No.2. Chandgi was the father of the plaintiff, defendant No.2 and the proforma defendants. Chandgi died in the year 1999. The plaintiff, defendant No.2 and Chandgi each had 1/3 rd share in the suit land and since Chandgi died intestate, his 1/3 rd share in the suit land devolved on the plaintiff, defendant No.2 and proforma defendants in equal shares. On such basis, it was pleaded that the plaintiff and defendant No.2 each have 5/12 th share in the suit land and the proforma defendants i.e. the daughters of Chandgi collectively would have 2/12 th share. The plaintiff became aware that a judgment and decree dated 27.5.1995 had been passed in civil suit No.314 of 6.5.1995 in pursuance to which the suit land was transferred by Chandgi in the name of defendant No.1. It was pleaded in the plaint that such decree was null and void as Chandgi had no right to transfer the said property the same being ancestral in nature.

(3.) Upon notice, defendant No.2 filed a written statement and a Court Guardian was appointed for defendant No.1 who was minor. The written statement filed by defendant No.2 was adopted as such by defendant No.1, and in the written statement, there is a clear admission that the suit property was ancestral in nature. It was also averred in the written statement that Chandgi had transferred the suit land in the name of defendant No.1 on his own sweet will and he was enjoying good health at that point of time.